How to cite: Mariqueo-Russell, Atus. “Rights of Nature and the Precautionary Principal.” In:

“Can Nature Have Rights? Legal and Political Insights,” edited by Anna Leah Tabios Hillebrecht and María Valeria Berros, RCC Perspectives: Transformations in Environment and Society 2017, no. 6, 21–27. doi.org/10.5282/rcc/8211.

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21Can Nature Have Rights?

Atus Mariqueo-Russell

Rights of Nature and the Precautionary Principle

There is an emerging body of environmental law that seeks to give formal rights to Na-

ture’s ecosystems. These laws are intended to surpass standard environmental regula-

tions that have provided weak opposition to the mass degradation of ecosystems. The

most radical advancements in the Rights of Nature movement have been the inclusion

of Rights of Nature in Ecuador’s 2008 constitution, followed thereafter by Bolivia’s pass-

ing of The Law of Mother Earth in 2010. These laws provide a powerful opportunity to

reshape our uncritical models of economic “development,” address our unmet moral ob-

ligations to future generations, and challenge our understanding of what it means to live

Nature laws into the public consciousness and political decision-making chambers. This

is especially true in Europe, where Rights of Nature laws are nonexistent and groups

advocating them have only recently begun to emerge. Moreover, it must be ensured that

these laws are advanced in a way that is conceptually coherent and rigorous enough to

-

-

vironmental laws. With that in mind, this article argues that progress in environmental

protection can be made by highlighting the mutually supportive relationship between

Rights of Nature laws and the long established, though increasingly threatened, Precau-

tionary Principle.

formulations are highly contested. However, a way of articulating the concerns of some

plausible threats of severe harm to the environment or public health, -

tainty should not be used as a reason for failure to take protective or preventative action.

Rather, uncertainty about the potential of harm should be a reason for implementing

regulation. In other words, the Precautionary Principle looks to transfer the burden of

proof; instead of one party having to prove that an action of another is potentially harm-

ful, the burden is on those who wish to pursue the allegedly harmful action to demon-

22 RCC Perspectives: Transformations

make with any degree of accuracy. Indeed, a large part of its appeal is in its recognition

that uncertainty cannot always be usefully numericized and represented as a probability.

While the Precautionary Principle has existed in the academic literature since the 1980s,

it has seen a recent bloom in success. Most notably, the European Union (EU) included

it in Article 191 of the 2007 Lisbon Treaty. More recently, in late 2015, the Supreme

Court of the Philippines upheld a national ban on the cultivation of genetically-modified

eggplant by appealing to the Precautionary Principle.1 However, these recent successes

have not been without resistance. One of the main concerns highlighted by Greenpeace

in their 2015 leak of documents pertaining to the negotiations over the proposed US-

EU free-trade agreement (TTIP), was that the Precautionary Principle could be dropped

from EU law and replaced by a “risk based” approach that manages hazards instead of

proactively preventing them.2 Presumably, this approach would be modelled upon the

various US executive orders issued by successive presidents of both the Democratic

and Republican parties. These explicitly require a cost-benefit analysis of proposed

regulations and do not permit the application of the Precautionary Principle in cases of

uncertain threats. Indeed, the United States has a long history of hostility towards the

Precautionary Principle, having successfully won a case arbitrated by the World Trade

Organization (WTO) against the EU for its ban on the sale of beef reared with growth

hormones, which was based on the Precautionary Principle. The EU refused to comply

with the WTO ruling and thereby incurred trade sanctions worth $116.4 million on un-

related EU goods.3

One of the most influential critiques of the Precautionary Principle is articulated by

Cass Sunstein. He argues that weak formulations of the principle are trivially true, while

strong formulations are incoherent.4 Sunstein points out that if all that the Precautionary

Principle requires is that we consider the risks posed by uncertainty in our deliberations,

then standard cost-benefit analysis approaches to valuing environmental harms can fac-

tor these risks into their calculations. However, if we opt for a stronger interpretation of

the Precautionary Principle that requires uncertain threats of harm to be an overriding

1 See the press release from Greenpeace International. “Philippines’ Supreme Court bans development of genetically engineered products,” 11 December 2015. http://www.greenpeace.org/international/en/press/releases/2015/Philippines-Supreme-Court-bans-development-of-genetically-engineered-products-/

2 See the BBC’s coverage of the leaks. “TTIP trade talks: Greenpeace leak‚ shows risks of EU-US deal,” 2 May 2016. http://www.bbc.co.uk/news/world-europe-36185746.

3 For more information, see Woodin and Lucas, Green Alternatives to Globalisation, 42–43.4 See Sunstein, Laws of Fear: Beyond the Precautionary Principle.

23Can Nature Have Rights?

consideration in our decisions, then the principle is incoherent because “risks exist on

all sides.” His claim is that the act of regulating something can also lead to uncertain

threats of harm in much the same way that refusing to regulate does. For example, it

is possible to imagine the existence of a whole range of absurd threats which, while

incredibly unlikely, are still conceptually possible. Therefore, according to Sunstein, the

Precautionary Principle provides no way of deciding between public policy options.

This problem warrants careful consideration. However, it can be solved if a minimum

plausibility threshold is set as a prerequisite for the Precautionary Principle to take ef-

fect.5 Applying this threshold can filter out the infinitesimally unlikely threats of harm

that can be ascribed to almost any action or inaction. Moreover, this must be coupled

with a minimum harm threshold so that only those threats that present a genuinely

harmful outcome will allow the principle to come into effect, thereby filtering out plau-

sible threats of minute harm that can also be widely identified.6 Such thresholds allow

the Precautionary Principle to function as a decision-making rule, and stop precaution

from being appealed to on both sides of the argument. In those rare cases where plau-

sible threats of severe harm do exist on both sides of the argument, then we will need

an alternative decision-making rule to arbitrate. Nevertheless, a methodology that delin-

eates threats based on their plausibility and scale of harm is promising. Clearly there is

much work to be done in deciding how to construct such a framework. It may well be, as

Rupert Read argues, that “[t]he distinction between absurd threats and credible threats

is too fundamental for there to be any algorithmic criterion.”7 If this is the case, then

democratic debate and practical intelligence are likely to play a large role in identifying

uncertain yet plausible threats of severe harm.

The implementation of the Precautionary Principle may sound like common sense, yet

it is remarkable how often uncertainty has historically been used to prevent, or more

often delay, environmental regulations. The book Merchants of Doubt (2010) by Naomi

Oreskes and Erik Conway is a useful resource in chronicling just how effectively doubt

has been weaponized by corporate lobbyists to delay urgent action on environmen-

tal and public health hazards. While what Oreskes and Conway primarily show is how

doubt is often manufactured and used to cloud what are, scientifically, relatively clear

5 This suggestion comes from Stephen Gardiner’s paper, “A Core Precautionary Principle,” 52.6 Carolyn Raffensberger and Joel Tickner call the approach of requiring uncertainty and harm thresholds

“dual trigger” mechanisms. See their chapter “Introduction: To Foresee and Forestall”, 1-11.7 Quoted from his paper, “How to Think about the Climate Crisis via Precautionary Reasoning,” 142.

24 RCC Perspectives: Transformations

threats. The more fundamental lesson from their work is that we need public decision-

making that does not react to doubt with inertia. After all, there have been precautious

cases against a litany of environmental and public health hazards well before scientific

consensus of harm has emerged.8 Formalizing the Precautionary Principle in national

and international law is one way of ensuring rapid responses to uncertainty of harm

when it is discovered, while also requiring more rigorous testing of new technologies

and practices before their use is sanctioned.

From this, we can infer that the Precautionary Principle can be useful to discussions

about Rights of Nature. If legal rights for ecosystems are to be sufficiently protective,

there needs to be an accompanying criterion that sets out the circumstances in which

actions violate an ecosystem’s rights. The Precautionary Principle can provide this cri-

terion, and can effectively arbitrate in instances of uncertainty when the potential harm

to ecosystems is unpredictable. This is especially important given that the complexity

of ecosystem health can make it difficult to detect and prove harm over shorter periods

of time. Moreover, the Precautionary Principle can also provide a corrective against the

power imbalances that so often characterize attempts to enforce environmental protec-

tion laws, where environmentalists often cannot match the legal spending power of

multinational corporations and governments that are financially invested in ecosystem

destruction. Without setting a high evidential barrier for proof that actions are harmless,

we risk Rights of Nature laws being ineffective in the face of competing interests.

Interestingly, Ecuador’s 2008 constitution clearly sets out both the rights that ecosys-

tems possess: “The right to integral respect for its existence and for the maintenance

and regeneration of its life cycles, structure, functions and evolutionary processes,” and

also the State’s requirement that, in environmental cases, “the burden of proof regarding

the absence of potential or real danger shall lie with the operator of the activity or the

defendant.”9 In this way, there is precedent for utilizing precaution as the basis for the

harm criterion in Rights of Nature laws. Explicit articulation of the Precautionary Principle

could benefit effective construction and implementation of these laws internationally.

8 See Harremoës et al, The Precautionary Principle in the 20th Century, for a list of public health and envi-ronmental harms that more precautious regulation may have prevented.

9 Articles 71 and 397 respectively. See George Town University’s translation of Ecuador’s constitution.http://pdba.georgetown.edu/Constitutions/Ecuador/english08.html.

25Can Nature Have Rights?

Moreover, one can reach the position of supporting Rights of Nature laws by thinking

about the environmental crises through the lens of the Precautionary Principle. Cur-

rent widely-used systems of valuing Nature, such as “natural capital” valuations, are

premised on the idea that through careful analysis we can optimize human wellbeing

by balancing the benefits of ecosystem destruction against its harms on a case-by-case

basis. The Precautionary Principle offers an alternative to such balancing methods by

arguing that, while the harms of individual ecosystem destruction are not comprehen-

sively measurable, given that we know their aggregation to be catastrophic, we ought

to resist potentially fatal, “managed” ecosystem destruction to begin with by adopting

Rights of Nature laws. Public policy based on the Precautionary Principle may therefore

entail the adoption of Rights of Nature laws. In this way, the Precautionary Principle

serves as a justification for Rights of Nature laws and is central to the harm criterion

needed for those laws to provide meaningful protection.

Given that the Precautionary Principle has a strong enough precedent in international

law to be under threat from global free-trade deals, there is a good case to think that it

should form a part of ecologically protective legal frameworks. However, it could still be

objected that despite its practical utility, it does not occupy anywhere near as radical a

position as Rights of Nature laws do in reforming our relationship with the environment.

The Precautionary Principle can be seen as anthropocentric in its essence, and unchal-

lenging of the owner-object paradigm. Instead, it simply recognizes limits to the extent

to which we can exploit Nature without undermining our own living conditions. While

this might be true, this criticism misses the extent to which anthropocentrism has be-

come conflated with a whole host of other ideals, such as technophilia, growthism, and

scientism.10 To conflate anthropocentrism with these other concepts is to misconstrue

its essence. There are good reasons for believing that anthropocentric interests are not

necessarily as far away from the ecocentric worldview as we might think. The work of

Richard Wilkinson and Kate Pickett has been crucial in showing how increased material

wealth does not equate to an increased quality of life, thus challenging the need for eco-

nomic growth and increased consumption as an anthropocentric demand.11 Similarly,

the work of postgrowth economists such as Tim Jackson are showing the likely impossi-

bility of continuing economic growth without seriously undermining our own living con-

ditions and leading to radically decreasing quality of life in the (not so distant) future.12

10 Foradiscussionofhowanthropocentrismandprogresshavebecomeconflatedwiththeseideas,seeRead, “Wittgenstein and the Illusion of ‘Progress,’” 265–84.

11 See their book, The Spirit Level.12 See his book, Prosperity Without Growth.

26 RCC Perspectives: Transformations

Without the need for (and possibility of) an economic model based upon ever-increasing

consumption, the contrast between ecocentrism and anthropocentrism is not so stark.

27Can Nature Have Rights?

Harremoës, Poul, David Gee, Malcolm MacGarvin, Andy Stirling, Jane Keys, Brian Wynne, and The Precautionary Principle in the 20th Century. Oxon: Earthscan, 2002.

Jackson, Tim. Prosperity without Growth: Foundations for the Economy of Tomorrow. 2nd ed. Oxon: Routledge, 2017.

Oreskes, Naomi and Erik M. Conway. Merchants of Doubt: How a Handful of Scientists Obscure the Truth on Issues from Tobacco Smoke to Global Warming. New York: Bloomsbury Press, 2010.

Raffensberger, Carolyn and Joel Tickner. “Introduction: to foresee and forestall.” In Protecting Public Health and the Environment: Implementing the Precautionary Principle, edited by Caro-lyn Raffensberger and Joel Tickner, 1–11. Washington D.C.: Island Press, 1999.

Read, Rupert. “Wittgenstein and the Illusion of ‘Progress’: On Real Politics and Real Philosophy in a World of Technocracy.” Royal Institute of Philosophy Supplement 78 (2016): 265–84.

Read, Rupert. “How to think about the climate crisis via precautionary reasoning: A Wittgenstei-nian case study in overcoming scientism.” In Wittgenstein and Scientism, edited by Jonathan Beale and Ian James Kidd, 133–51. Oxon: Routledge, 2017.

Sunstein, Cass R. Laws of Fear: Beyond the Precautionary Principle. Cambridge: Cambridge University Press, 2005.

Taleb, Nassim Nicholas, Rupert Read, Raphael Douady, Joseph Norman, and Yaneer Bar-Yam. “The NYU Ex-

treme Risk Initiative Working Paper, 2014. http://www.fooledbyrandomness.com/pp2.pdf.

Wilkinson, Richard and Kate Pickett. The Spirit Level. 2nd ed. London: Penguin Books, 2010.

Woodin, Michael and Caroline Lucas. Green Alternatives to Globalisation: A Manifesto. London: Pluto Press, 2004.

Further Reading:

Gardiner, Stephen M. “A Core Precautionary Principle.” The Journal of Political Philosophy 14, no. 1 (2006): 33–60.